Borek Motor Sales, Inc. v. NLRB

Decision Date08 April 1970
Docket NumberNo. 17325.,17325.
Citation425 F.2d 677
PartiesBOREK MOTOR SALES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

George B. Christensen and Richard F. Vitkus, Chicago, Ill., for Borek Motor Sales, Inc., Petitioner; Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Janet C. McCaa, Atty., N. L. R. B., for respondent.

Before HASTINGS, Senior Circuit Judge, FAIRCHILD and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

This petition asks us to set aside an order of the National Labor Relations Board requiring petitioner to cease and desist from threatening employees with discharge for giving assistance to the Union1 and to reinstate a discharged employee.

Petitioner is a Pontiac automobile dealer in Blue Island, Illinois. In pertinent part, the evidence on which the trial examiner based his findings shows that on November 15, 1967, a salesman from another Pontiac agency gave Ralph Ambriz, one of petitioner's salesmen and its assistant sales manager, six to eight envelopes containing literature and authorization cards of the Union. Ambriz distributed three of these envelopes to fellow salesmen Howard Riley, Al Donohue, and Ralph Teeter. When petitioner's general manager, Robert Farino, asked about the material which the salesmen were examining, Ambriz explained that it was union literature with authorization cards. Before Ambriz had read the material, Farino approached him and took the material. He next reached for the material in Teeter's possession. When Teeter responded that he had not finished reading it, Farino remarked to him: "If you are going to sign, don't bother then, because I'll fire you first." Although Farino denied this and another salesman testified that he had not heard such a threat, the trial examiner credited the testimony of Ambriz, Riley and Teeter, all of whom attested to the threat.

Forty-five minutes later, Ambriz retrieved two of the envelopes and their enclosures from the wastebasket in Farino's office. About November 17, Ambriz received signed authorization cards from Riley, Donohue, and possibly salesman Sam Conti. Ambriz placed the cards with his own in an envelope which he dropped into petitioner's mailbox for posting to the Union, but Teeter mailed his card directly to the Union. The Union received only Teeter's authorization card. Consequently, in early December, the other salesmen executed new authorization cards which Teeter then mailed to the Union.

Petitioner's president, Ted Borek, learned of the Union's organization effort on November 15, when Farino called it to his attention. Borek referred to it as follows:

"All of a sudden * * *, a situation of this kind comes up and they don\'t confide in you. All of a sudden the air is pretty thick. I don\'t know why it should be. I didn\'t like it."

At a November 21 breakfast meeting with his salesmen, Borek told them that union organization was their privilege. He also advised them that if there were a union, the entire state should be organized or customers would go to other Illinois towns to obtain cheaper automobiles.2 He said "he wouldn't want to be a victim of the one individual on the opposing team, which would be joined in the union," and that union membership "was not a fancy cure for the ills of the world."

On January 6, 1968, according to the credited testimony, Farino asked Ambriz for some information about a meeting of the Union to be held on January 7. Because of an interruption, Ambriz did not respond, but he "knew" that Farino would have been against the meeting. On the same day, Ambriz volunteered to drive petitioner's other four salesmen to the meeting. All five of them were in attendance on the following evening.

Teeter considered that from time to time salesman Conti passed information along to Farino. On January 8, Farino learned from Conti that the scheduled meeting to organize the Union had taken place. Farino "assumed" that some of his salesmen were present, but he did "not for sure" know whether Teeter had attended. On the evening of January 8, Teeter was discharged by Farino. Farino asserted that the discharge was prompted by Teeter's poor sales record, including his refusal to send letters to and telephone prospective customers. Teeter protested his discharge, telling Farino that he was "only three cars behind the top man." Although ill from about Christmas 1967 until early January, Teeter was actually only two delivered cars behind Ambriz in December.

Apart from disagreeing with his interpretation of Borek's November 21 breakfast talk, the Board adopted the examiner's findings and held that petitioner violated Section 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (1)) by threatening Teeter with discharge if he signed a union card, and that it violated Section 8(a) (3) of the Act (29 U.S.C. § 158(a) (3)) by discharging him for joining and supporting the Union. We conclude that the Board's order must be enforced.

The Cease and Desist Order

There was substantial evidence from which the Board could conclude that the petitioner violated Section 8(a) (1) of the Act by virtue of the coercive threat of its sales manager Farino. Three witnesses testified to the threatened discharge of Teeter should he sign the Union's authorization card. In spite of this clear infringement of the employees' Section 7 organizational rights by their supervisor, Borek now claims that the Board should not have issued the cease and desist order. Petitioner asserts that the violation was isolated and was, in any event, "cured" by the remarks of the Company's president on November 21. We disagree.

There is no need to engage in a prolonged discussion of the issuance of cease and desist orders predicated upon isolated instances of insignificant or technical violations of the National Labor Relations Act.3 Here a review of the findings of the Board evinces that the violation was neither isolated nor insignificant. The threat of discharge is one of the most effective coercive weapons available to management. National Labor Relations Board v. Louisville Chair Company, 385 F.2d 922, 926 (6th Cir. 1967), certiorari denied, 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163. Moreover, after warning Teeter, Farino virtually confiscated the union literature and authorization cards and discarded them in his wastebaske whence the employees were forced to retrieve them. There is even evidence suggesting that signed authorization cards placed in the Company's mailbox were removed and prevented from reaching the Union. Some months after these events, Farino quizzed Ambriz concerning a union meeting to be held that night. On the following day, Farino learned from Conti of the meeting and, that same day, discharged Teeter who had attended the meeting. The Board was certainly justified in construing these events as indicating a continued expression of hostility to the Union which intimidated Borek's employees.

Nor do we accept petitioner's contention that president Borek's November 21 breakfast remarks vitiated the unwholesome effects of Farino's actions. These remarks were not the "specific, and unambiguous assurances to employees" present in Playwood Plastics Co., Inc., 110 NLRB 306, 313 (1954). Viewed in the context of the overall behavior of petitioner, his remarks fail to undercut the Board's conclusions or the propriety of its cease and desist order. See Time-O-Matic, Inc. v. National Labor Relations Board, 264 F.2d 96, 99-100 (7th Cir. 1959); National Labor Relations Board v. Marsh Supermarkets, Inc., 327 F.2d 109, 112 (7th Cir. 1963), certiorari denied, 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307.

The Discriminatory Discharge

Petitioner next argues that its discharge of Teeter did not violate Section 8(a) (3) prohibiting the discriminatory discharge of an employee to discourage membership in a labor organization. Borek contends that the dismissal was the result, not of any anti-union animus on its part, but of the poor performance of Teeter as a salesman.

It is well settled that the presence of valid grounds for an employee's discharge does not legalize a dismissal which was nevertheless due to a desire to discourage union activity. National Labor Relations Board v. Symons Manufacturing Co., 328 F.2d 835, 837 (7th Cir. 1964); Nachman Corp. v. National Labor Relations Board, 337 F.2d 421, 423-424 (7th Cir. 1964); see also National Labor Relations Board v. Stafford Trucking, Inc., 371 F.2d 244, 247 (7th Cir. 1966). In this case, assuming arguendo that Teeter's sales performance would have justified dismissal, there was substantial evidence from which the Board reasonably inferred that the discharge was not based solely upon that ground and was therefore illegal.

In addition to Farino's threat to fire Teeter which was made in the presence of other employees, there was evidence from which the Board could have inferred that the Company, through Farino, was aware of his continued activity with the Union. The timing of the discharge also supports the inference that Teeter was fired in order to make good the threat and support its intimidating effect on his fellow employees. Cf. National Labor Relations Board v. American Casting Service, Inc., 365 F.2d 168, 171-172 (7th Cir. 1966); National Labor Relations Board v. Camco, Incorporated, 340 F.2d 803, 811 (5th Cir. 1965), certiorari denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339; National Labor Relations Board v. Ambox, Incorporated, 357 F.2d 138, 142 (5th Cir. 1966). Unlike Broadway Motors Ford Inc. v. National Labor Relations Board, 395 F.2d 337 (8th Cir. 1968), relied upon by petitioner, here were not only a coercive threat and other indicia of anti-union bias, but also less than convincing evidence that Teeter was...

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